Protecting minors from sexual crimes: is it enough to change the law?

In the wake of the #metoo movement, child crime is at the center of public debate. The government, deputies and senators are proposing to create a new crime to better protect minors. But magistrates and associations point the finger at the lack of means given to justice.

“We are going to act very quickly now. At the microphone of Europe 1, this Tuesday, February 9, Adrien Taquet, the Secretary of State in charge of Children and the Family displays his determination. The government wants to quickly put in place new legislation combating sexual crimes against minors. With the “Duhamel” and “Julie” cases, the fight against pedo-crime is at the center of the news and speech is freed up. On social networks, the hashtag #metooincest helps reveal the extent of the phenomenon in French society.

According to an Ipsos survey carried out for the association "Face à l'inceste" and published on November 19, 2020, 1 in 10 French people declares to have been a victim of incest. These figures are clearly increasing and the figures for incest in France have tripled since 2009. At the time, the number of victims declared in France is 6,7 million today. The increase would be explained directly by the release of speech around incest.

Create a new crime in the law to protect minors

The Keeper of the Seals, Éric Dupond-Moretti, spoke on the television news set of France 2, on Tuesday February 9, to outline strong measures to protect minors from sexual crimes. The Keeper of the Seals was clear: “Any act of penetration by an adult on a minor under 15 is a crime without any question of consent. » Patrick Loiseleur, vice-president of the association « Face à l'inceste » is delighted « that society and the government now seem ready for this change. After 2018, we said to ourselves that it was cooked for this five-year term, after the missed opportunity of the Schiappa law ”. Since the 80s, rape has in fact been defined in the same way whether the victim is an adult or a minor. To justify the qualification of rape, it is necessary to prove the non-consent of the victim by one of these four elements: acts of violence, threat, constraint or surprise.

As Éric Dupond-Moretti said: “Society leads us to change the law”. Today, it seems more and more inconceivable to question the consent of a child victim of sexual violence. Several bills agree today, in line with government announcements, to create a barrier age up to which the consent of the victim will not be questioned. In her bill voted on January 21, 2021 unanimously in the Senate, Annick Billon proposes to set this age at 13 years old. The senator from Vendée wants to be able to create this barrier, absent from the 2018 Schiappa law due to an opinion from the Council of State describing the measure as unconstitutional.

Its objective is therefore to create an autonomous offense for minors under the age of 13 by creating a prohibition in the law. Annick Billon explains: “In this context, children would never have to justify behavior or consent”. For 13-15 year olds, the bill “inserts a provision that would allow the judge to retain one of the criteria of constraint or surprise without having to prove it for the child. These criteria could stem from the young age of the victim,” she adds. Some elected officials and associations wanted a barrier age of 15. Annick Billon justifies her position as follows:

“Today, in the law in force, there is the sexual attack on minors which is fixed at 15 years. By creating a crime at 15 years, it meant that for the same offence, there was a double qualification. It is not possible in law. So failing to remove the sexual attack, it was complicated to establish two qualifications for the same crime. In addition, the threshold of 13 years makes it possible to take into account consensual relationships between adolescents. The motivation was both to circumvent the obstacle of the opinion of the Council of State and to take into account the consented relationships between adolescents as they exist. »

Respect the spirit of reform

For Patrick Loiseleur, “the Billon bill is a bit timid” and we should go further to protect children: “We have been calling for the creation of a specific crime for a long time. We had already asked for it in 2018 with the double creation of an age threshold at 15 and 18 in the context of incest in order to put an end to the search for the consent of the child. The vice-president of the association is concerned about certain amendments to the bill by Alexandra Louis, LREM deputy for Bouches-du-Rhône and which will soon be presented to the National Assembly:

“Two things worry us: the addition of a condition if the author knew or could not have ignored the age of the victim. It's wording that can weaken the text because it opens the door to a defense strategy of the type "she told me she was 16 and I didn't check and I didn't even want to to verify ". Whereas if we say "a minor under the age of 15", we create the obligation for adults to verify the age of his or her sexual partner. It is a stricter wording, more readable and more in line with the triumphant announcements that were made by Dupond-Moretti […] Second source of concern: the age difference of 5 years, that is to say that the offense is not established if the age difference is less than 5 years. […] That means that 13 and a half on one side and 18 on the other, well that's okay. And even in this case, we have a legislative regression since the sexual attack on minors, it is any major on a minor of 15 years. »

Lucille Rouet, magistrate and secretary general of the Syndicate of the Judiciary agrees: "The question of knowing the age of the victim risks creating a debate on what the victim has let appear, which goes against of the spirit of reform. Patrick Loiseleur, he insists: "What we are attentive to is that the principle which is trumpeted on TV is not dismantled by the clauses in small print in the writing of the law, which would weaken it or empty it of its substance. »

Give the means to Justice

For Lucille Rouet like Patrick Loiseleur, better protecting minors does not only mean reforming the law, it is also necessary to give justice the means to act. As the magistrate explains, “the processing times for files are extremely long, it can take up to several years. But there is no political urgency to solve this problem. " Patrick Loiseleur shares this observation: "It is not the whole thing to define a crime, but the courts of assize, they, cap at 2 cases judged per year. […] Last year, we had to judge a thousand rapes, half of them involving minors. […] We do not have the means to judge all the cases that come in, even with the small number of victims who file a complaint, that is to say 400%. That's how you get to 10% convictions. »

In addition, because of the backlog in the Assize Courts, many rapes are “corrected” and will thus be judged in the Criminal Court. This maneuver has been possible since the Perben law of 2004. If the civil party agrees, the acts of rape are then qualified as sexual assault. Going before the Criminal Court allows the victim to obtain a judgment more quickly thanks to the absence of jurors and shorter hearings, often with better chances of conviction for the aggressor.

But Lucille Rouet recalls that “we go from a crime to an offence, the penalties incurred for the accused are therefore not the same. We go from 20 years of imprisonment to 5, 7 or 10 years depending on the aggravating circumstances. The great challenge is thus to put an end to the impunity which currently protects 99% of the aggressors.

For Patrick Loiseleur: "Whether criminal law, medical care, these are only bricks in an overall strategy for preventing a public health problem" in order to prevent the current generation of those under 18 years of undergoing the same law of silence as the previous one.